On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-10359-99.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue in this appeal is whether under our Supreme Court's decisions in Perna v. Pirozzi, 92 N.J. 446 (1983), and Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537 (2002), a patient who consents to a spinal fusion by one surgeon under the mistaken belief that he is being assisted by a specific vascular surgeon, and has no proof of injuries resulting from the substitution, has an action against the operating surgeon for battery, breach of contract, or breach of fiduciary duty owed by a physician to a patient. The trial judge found in the negative and granted summary judgment in favor of the defendant-surgeon who obtained the consent and performed the operation. We affirm.
In this medical malpractice action, plaintiff Walter Starozytnyk*fn1 appeals from summary judgment in favor of defendant Dr. Steven Reich, who performed his spinal fusion surgery, dismissing his claims for battery, lack of informed consent, breach of contract and breach of fiduciary duty. Plaintiff's claim was based on the allegation that defendant had told him a specific vascular surgeon, Dr. Alan Graham, would perform the vascular portion of plaintiff's surgery and the specified doctor was not the surgeon who assisted in the operation.
Plaintiff had been a patient of Dr. Reich since l993 for lower back pain. Dr. Reich performed back surgery on him in l994 but by mid-1997, plaintiff had increasing pain in his lower back. At his deposition, plaintiff testified he was very reluctant to undergo the surgery recommended by Dr. Reich, an anterior spinal fusion at two levels, L4-L5 and L5-S1, and the implementation of medical devices known as BAK cages. The principal factor influencing plaintiff to change his mind and have the surgery was that "Dr. Reich told [him] that [Dr. Reich] would be able to get the chief vascular surgeon at Robert Wood Johnson Hospital [Dr. Graham] to perform the vascular surgery part of the surgery." Dr. Reich also told him Dr. Graham was "the one who taught the other doctors how to do it. That he was one of the best surgeons in the country. And that you couldn't get anybody better. That he was the teacher who taught the teachers." Plaintiff agreed to undergo the surgery when, after six months of discussing the surgery and his reticence at great length, Dr. Reich promised he would get Dr. Graham to perform the vascular part of the surgery. Plaintiff testified he wanted Dr. Graham to be present to ensure that he would not suffer from a condition known as retrograde ejaculation, a potential side effect of the procedure.
Plaintiff went to the hospital on October 21, 1997 for pre-operative testing, where he received a phone call from Dr. Reich's office stating that the surgery was to be rescheduled because of Dr. Graham's unavailability. Prior to the surgery, plaintiff did not speak to any physician involved in the surgery other than Dr. Reich. Plaintiff claimed he would not have gone through with the surgery if he had known Dr. Graham would not be present; this point was clearly communicated to and understood by Dr. Reich. Christine Rudolph, RN, a case manager from plaintiff's workers' compensation insurance carrier who accompanied him on his visits to Dr. Reich, wrote in an October 2, 1997 report that "Dr. Graham who is Director of Vascular Surgery [would] be present" at the surgery tentatively scheduled for October 21, 1997.*fn2
On November 4, 1997, plaintiff was admitted for surgery to Robert Wood Johnson University Hospital. He signed a "Request for Operative or Procedural Intervention," a boilerplate form which authorized Dr. Reich "and whomever [Dr. Reich] may designate as his assistant(s) to perform the operation or procedure" identified on the form as anterior spinal fusion. Dr. Reich performed the surgery with the assistance of Dr. Todd Stefan and Dr. J. Gerard Crowley. Dr. Graham was not present.
Two or three days post-surgery, plaintiff felt tremendous pain in his right leg which radiated into his foot, and his right big toe was extremely swollen. His stomach was also distended. X-rays indicated an intestinal blockage. Plaintiff asked to speak with Dr. Graham, thinking the vascular surgeon would be able to explain the blockage. He was then informed that Dr. Graham had not performed the surgery.
During his last visit with Dr. Reich, accompanied by Ms. Rudolph, plaintiff questioned him about the identity of the surgeon who performed the vascular part of his operation. Dr. Reich responded that it was Dr. Graham. Plaintiff recounted the discussion in his deposition testimony:
I asked Dr. Reich who was the vascular surgeon that operated on me. And oh, he told me it was Dr. Graham. And I said to him, "I know it wasn't Dr. Graham. I don't know who it was, but I know it wasn't Dr. Graham." So then Dr. Reich started looking through his notes, going through paper after paper and he was becoming very agitated.
And he couldn't find the name of the doctor, he slammed the book shut and started shouting, "I know where" -- he said something to the effect "I am not going to answer this. I was there every minute of the time. It's not like I went out and had coffee and came back. I am not going down this road with you." He slammed his book shut, and said, "I will see you in three weeks," and stormed out of the door. And then I looked at Christine and we just couldn't believe what happened. And we got up and left.
On November 16, 2001, Dr. Graham and Dr. Crowley both testified at depositions that they had no knowledge of the alleged agreement between Dr. Reich and plaintiff regarding the assistance of only Dr. Graham at the surgery. Dr. Graham testified that the doctor who assists in surgery is based upon "whoever is available that day or if the patient is directed specifically through the offices," the latter part meaning if "[t]he patient comes in my office to see me specifically, then, obviously he's my patient, but generally cases are booked from this [Dr. Reich's] office to my office." Dr. Crowley testified that Dr. Reich's secretary would notify him when he was needed to assist. There were never occasions in which he was specifically requested by other physicians to assist in spinal surgeries.
At depositions, Dr. Reich testified he never told plaintiff that Dr. Graham would be the vascular surgeon who would assist in his surgery. He further testified he never had a patient ask for a particular assisting surgeon to be put on the consent form and he would not satisfy such a request. For purposes of his summary judgment motion, however, Dr. Reich accepted plaintiff's factual assertions that he had promised to use Dr. Graham as the vascular surgeon in plaintiff's back surgery but instead used Dr. Crowley. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46.
Plaintiff suffered significant residual effects from the operation. Plaintiff presented a February 10, 2004 expert report of Dr. Allan D. Tiedrich, a physician specializing in physical medicine and rehabilitation, opining that the surgery had caused retrograde ejaculation and a painful neurological condition known as reflex sympathetic dystrophy (RSD), and that the increased chronic back pain was an exacerbation of plaintiff's previous pain. According to Dr. Tiedrich, these injuries were permanent and plaintiff's prognosis was poor. The expert did not opine that these conditions resulted from physician negligence; they appear to have been a known risk or a possible result of the surgery.
Plaintiff also presented the office notes of his treating psychiatrist,*fn3 Dr. Jose Vasquez, that on December 12, 1997, plaintiff was "depressed and anxious about his current medical condition," "cripple and sterile," "upset about outcome of surgery" "unable to walk" and "unable to sleep." His January l6, 1998 notation stated that plaintiff "remained depressed and angry about his current physical condition."
On November 3, 1999, plaintiff filed suit against Dr. Reich, Dr. Crowley, Dr. Stefan, Dr. Graham and Robert Wood Johnson University Hospital, alleging negligence and deviation from the standard of medical care, lack of informed consent, battery and breach of contract, and seeking compensatory and punitive damages. Plaintiff's wife asserted a per quod claim. Plaintiff thereafter dismissed by stipulation his claim against the hospital and all doctors other than Reich. Plaintiff abandoned his general malpractice claim asserting that the surgery was performed ...